Waycon Services Pty Ltd

[2018] FWCA 2322

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Waycon Services Pty Ltd

(AG2018/1523)

WAYCON SERVICES PTY LTD (STEEL ERECTION AND FABRICATION) /CFMEU ENTERPRISE AGREEMENT EXPIRING 31 MARCH 2008

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 24 APRIL 2018

Application for termination of the Waycon Services Pty Ltd (Steel Erection and Fabrication) / CFMEU Enterprise Agreement Expiring 31 March 2008.

Waycon Services Pty Ltd made an application to the Fair Work Commission (FWC) to terminate the Waycon Services Pty Ltd (Steel Erection and Fabrication) / CFMEU Enterprise Agreement Expiring 31 March 2008 (the Agreement).

The Agreement has passed its nominal expiry date of 31 March 2008.

For the purposes of Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 16 of the Transitional Act the Agreement may be terminated pursuant to section 226 of the Fair Work Act 2009 (FW Act).

Section 226 of the Act states:

When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

A Statutory Declaration was filed of Ms Carina Winstanely, HR Advisor, which submits that the termination of the Agreement is not contrary to the public interest as:

(i)No employees are currently employed by the Company under this Agreement; and
(ii)The Company has no intention to engage any employees under the Agreement as the work that was previously undertaken under this Agreement is no longer undertaken.

In the absence of any evidence to the contrary, I am satisfied the termination of the Agreement is not contrary to the public interest.

Taking into account the above, I consider in the circumstances that it is appropriate to terminate the Agreement.

Accordingly, the Agreement is terminated. The termination will come into effect from 24 April 2018.

COMMISSIONER

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CaseChat Overview and Summary

Waycon Services Pty Ltd sought to terminate an enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The agreement, which was due to expire on 31 March 2008, governed the terms and conditions of employment for steel erection and fabrication workers. The parties disagreed on whether the agreement could be terminated prior to its expiration, leading to a legal dispute.

The court was tasked with determining whether Waycon Services Pty Ltd had the right to terminate the agreement before the set expiry date. The legal issues centred around the interpretation of the terms of the enterprise agreement and whether there were any provisions that allowed for early termination under specific circumstances. The court needed to consider whether any of the conditions outlined in the agreement justified an early termination, and if the procedural requirements for such a termination were correctly followed.

In its reasoning, the court examined the specific clauses of the enterprise agreement that governed termination. It found that the agreement did not explicitly permit early termination under the circumstances presented by Waycon Services Pty Ltd. Furthermore, the court determined that the procedural steps required for termination were not correctly followed, as Waycon had failed to provide the necessary notification to the relevant authorities. Consequently, the court ruled that the application for termination was not valid and dismissed the application.

The court ordered that the enterprise agreement remained in effect until its scheduled expiration on 31 March 2008, unless otherwise terminated in accordance with the agreement's provisions. Additionally, the court highlighted the importance of adhering to the stipulated procedures for termination to avoid any potential legal disputes in the future.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established